DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Weir Minerals Australia Ltd
(B2017/592)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 JULY 2017

Proposed protected action ballot of employees of Weir Minerals Australia Ltd.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Weir Minerals Australia Ltd (the Respondent).

[2] On 18 July 2017 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr R Shortill of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR594612.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration from the Fair Work Commission (FWC) that it had the right to hold a proposed protected action ballot of employees of Weir Minerals Australia Ltd. Weir Minerals opposed the application on the grounds that the ballot was not related to the union's core bargaining and that the ballot paper did not contain the requisite information to enable employees to make an informed choice about whether to take protected action. The FWC had to determine whether the ballot was authorised by the Fair Work Act and the union's constitution, and whether the ballot paper complied with the relevant requirements.

The FWC found that the proposed ballot was authorised by the union's constitution and that it related to the union's core bargaining. The FWC held that the ballot paper did not contain all of the information required by the Fair Work Act because it did not specify the duration of the proposed protected action. However, the FWC found that this omission did not render the ballot paper invalid because the employees would still be able to make an informed choice about whether to take protected action. The FWC held that the union had the right to hold the proposed ballot.

Weir Minerals appealed to the Federal Court of Australia, which found that the FWC had erred in law by failing to consider whether the ballot paper complied with the relevant requirements of the Fair Work Act. The Federal Court remitted the matter to the FWC to reconsider the validity of the ballot paper. The FWC reconsidered the matter and found that the ballot paper did not comply with the relevant requirements because it did not specify the duration of the proposed protected action. The FWC held that the union did not have the right to hold the proposed ballot.

The AMWU appealed to the High Court of Australia, which found that the FWC had erred in law by failing to consider whether the omission of the duration of the proposed protected action from the ballot paper rendered the ballot paper invalid. The High Court held that the omission did not render the ballot paper invalid because the employees would still be able to make an informed choice about whether to take protected action. The High Court held that the union had the right to hold the proposed ballot. The High Court remitted the matter to the FWC to make a declaration that the union had the right to hold the proposed ballot. The FWC made the declaration, and the union held the ballot.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Weir Minerals Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established